Discrimination Against Gay Employee By Religious Supervisor States Title VII Religious Discrimination Claim

In Terveer v. Billington, (D DC, March 31, 2014), Peter Terveer, a former management analyst with the Library of Congress alleged religious discrimination, sex discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act. Terveer claimed, among other things, that he was denied a within-grade salary increase after his supervisor, a conservative Catholic, learned that Terveer was homosexual. The court said, in part, that Terveer claims:

he alleged facts showing that he was discriminated against because he failed to live up to his supervisor’s religious expectations. The Court agrees with Plaintiff. Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs."

Advocate reports on the decision.

Lawsuit Challenges Georgia's Scholarship Tax Credit Program

The Atlanta Journal Constitution reports that a lawsuit was filed yesterday by a group of parents challenging Georgia's student scholarship organization tax credit program.  The program allows individuals and corporations tax credits for contributions to organizations that in turn fund scholarships for private school students.  Among other things, the lawsuit-- backed by the Southern Education Foundation-- alleges that the program gives indirect funding to religious schools in violation of Georgia' constitution. The program has become so popular that this year the $58 million overall cap on tax credits allowed for the year was met in the first few weeks of the year.

Discriminatory Firing Claim Dismissed Under Ministerial Exception Doctrine

In Conlon v. Intervarsity Christian Fellowship/ USA, (WD MI, April 3, 2014), a Michigan federal district court applied the ministerial exception doctrine to dismiss a discrimination suit brought by a former spiritual director to Intervarsity Christian Fellowship staff members. Plaintiff Alyce Conlon, who was considering divorcing her husband, was placed on leave and ultimately fired under IVCF’s Separating and Divorcing Staff Policy. She claims that she was treated differently than male staff members who divorced their spouses. The court said in part:

Plaintiff’s suggestion that the ministerial exception applies only to those cases in which a court would be required to evaluate religious doctrine “misses the point of the ministerial exception,” which is not to “safeguard a church’s decision to fire a minister only when it is made for a religious reason.” Hosana-Tabor, 132 S. Ct. at 709. Rather, the exception “ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” Id. Thus, the ministerial exception prevents a court from evaluating the employment decisions of a religious organization regardless of whether the court would be required to delve into religious doctrine.

5th Circuit: Principal Enjoys Qualified Immunity In Adult Speech "Candy Cane" Case

In Morgan v. Swanson, (5th Cir., April 2, 2014), the U.S. 5th Circuit Court of Appeals upheld the district court's conclusion that a Plano, Texas elementary school principal enjoyed qualified immunity in a suit for damages.  In this aspect of the 9-year old litigation, a student's father complained that the principal did not permit him to distribute candy canes with a religious message attached to other adults at his son's in-class winter party.  In a per curiam opinion, plus two concurrences, the court held that the right asserted by the father was not "clearly established". The court said:

A plaintiff does not overcome the qualified immunity defense by alleging the violation of a right that is only defined “at a high level of generality.”... Instead, there must exist a clearly established “particular right” such that the official had “fair notice” of that right and its concomitant legal obligations

In a prior elaborate decision (see prior posting), the 5th Circuit en banc held that even though the principal's actions were unconstitutional, she enjoyed qualified immunity as to claims that the student should have been permitted to hand out the candy canes to his classmates.

UPDATE: On June 3, 2014, the 5th Circuit filed a substituted opinion (full text) in the case modifying some of its language describing the test for qualified immunity. The quote in this posting was unchanged in the substituted opinion.

2nd Circuit: No Free Exercise Problem In Denying School Space For Church Worship Services

In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., April 3, 2014), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, reversed the district court and held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. Board policy permits outside groups to use school space for other purposes during non-school hours merely for the cost of custodial services. The majority held that strict scrutiny is not required when the Board acts in order to avoid the risk of violating the Establishment Clause. It concluded that:

the better rule allows the Board, if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of  the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.

The majority also concluded that the Board's policy does not require it to become unconstitutionally entangled with religion in deciding what constitutes religious worship.

Judge Walker dissented, arguing that strict scrutiny should apply because the Board regulation "is neither neutral nor generally applicable in its treatment of religion." He concludes that the Board does not have a compelling interest in avoiding an Establishment Clause violation because it is clear that allowing churches to use facilities on the same neutral basis as others does not violate the Establishment Clause.

The decision is the latest in the long-running battle over church use of school space on Sundays. The 2nd Circuit in a previous decision upheld the Board's rule change against a free expression challenge. (See prior posting.) The Wall Street Journal reports that lawyers for Bronx Household of Faith plan an appeal, but that remarks by Mayor Bill DeBlasio suggest that he might be willing to change the Board policy adopted under the predecessor administration.

House Committee Holds Hearing On Persecution of Religious Communities In Vietnam

A video is now available online of the March 26 hearing by the U.S. House Foreign Affairs Committee's Tom Lantos Human Rights Commission on  Persecution of Religious and Indigenous Communities in Vietnam. The hearing Witness List included USCIRF Commissioner Eric P. Schwartz (written testimony), Father Phan Van Loi (Co-Founder of the Association of Former Vietnamese Prisoners of Conscience), Sub-dignitary Nguyen Bach Phung (Clergy member of an independent Cao Dai Sect); Yunie Hong (Director of Policy Advocacy, Hmong National Development), and Rong Nay (Executive Director, Montagnard Human Rights Organization).

ADL Releases 2013 Annual Audit of Anti-Semitic Incidents

In a press release this week, the ADL announced the release of its Annual Audit of Anti-Semitic Incidents. The audit found 751 incidents across the U.S. during 2013. (State-by-state totals.) This is a 19% decrease from the prior year. Of the 751 incidents, 405 involved harassment, 315 involved vandalism and 31 involved assaults.

Mississippi Legislature Passes Religious Freedom Restoration Act

On Tuesday, the Mississippi legislature gave final passage to SB 2681, the  Mississippi Religious Freedom Restoration Act after a Conference Committee took out some of the language that civil rights groups found objectionable. The final version of the bill passed the Senate by a vote of 37-14, and the House by a vote of 79-43. The bill now goes to Gov. Phil Bryant who, Reuters reports, will sign the bill. As passed, the bill requires state and local governments to demonstrate that they are using the least restrictive means to further a compelling governmental interest before they may substantially burden religious exercise. Opponents of the bill argued that it could permit discrimination against gays and lesbian on religious grounds. Another portion of the bill adds the phrase "In God We Trust" to the Mississippi seal.

Negligence In Identifying Son's Body Did Not Deprive Mother of Free Exercise Rights

In Simkova v. City of Newark, (D NJ, March 31, 2014), a New Jersey federal district court dismissed free exercise and due process claims against the city, police officials, the state medical examiner and others. The court described the facts as follows:

In January 2012, plaintiff Zdenka Simkova ... learned that her son, Michael ... who went missing in 2007 over the Thanksgiving holidays and had never been located—had died years earlier and was buried in a mass grave in Hackensack. She filed a federal lawsuit detailing both the resistance she faced after she reported him missing within days after he failed to show up at her house and the misinformation she received from official sources..... Simkova alleged that the defendants failed to follow proper procedures for the identification and investigation of missing persons—a result, in part, of the municipal defendants’ policies and their failure to train their employees—thereby depriving her of her right to possess her son’s body and to bury him in accordance with her religion.

In rejecting plaintiff's free exercise claim, the court emphasized that plaintiff had not alleged defendants were aware of her religious concerns, or had any idea that their actions might affect her religious practice.

Contempt Motion Filed Against County Commission For Christian Prayers

The American Humanist Association announced that yesterday it filed a contempt of court motion (full text) against members of the Carroll County, Maryland Board of Commissioners for violating a court order (see prior posting) barring them from using specific Christian references in Council invocations.  One day after the entry of the injunction, Council member Robin Frazier delivered an explicitly Christian invocation and expressed objections to the court order. Then on Tuesday, the Board invited Bruce Holstein (reportedly the campaign manager of one of the Commissioners) to speak. He read a statement and offered a prayer harshly critical of the judge's decision, saying in part:

The judge may have prevented you commissioners from praying to Jesus Christ, but I want you to know that we, the citizens of Carroll County, are not gonna stand for it.

We are overruling Judge Quarles’ objection by offering this prayer on your behalf: Heavenly father, I stand here this morning and ask your blessing on our five county commissioners.... They have received a court Order from a misguided judge who forbids them from praying in the name of your son, Jesus Christ. This Order discriminates against Christians and is a gross violation of our commissioners’ First Amendment Constitutional rights. Therefore I ask you to bless their proceedings today and bless the case about Christian prayer before the Supreme Court and I ask for these blessings in Jesus’ name. Amen.

While the court's injunction ran against the Board members, plaintiff in its Memorandum of Law (full text) argues that it also bars the prayer delivered by Holstein:

There is no question the Defendants had the authority to stop this person from delivering a prayer at their Board meeting. They also had the ability clarify to the public, after the prayer was delivered, that it was not endorsed or supported by the Board.

The full text of the statements and prayers by both Commr. Frazier and Mr. Holstein are included in the Memorandum of Law.

Israel's Supreme Court Rules That Original Austrian Jewish Historical Documents Should Stay In Israel

Haaretz reports that a 3-judge panel of Israel's Supreme Court yesterday handed down a decision in a suit by the Jewish community in Vienna, Austria seeking return from Israel's  Central Archives for the History of the Jewish People of thousands of historical documents deposited there after World War II to keep them safe.  The Austrians claim that the documents, which trace the community's history, were only on loan and should be returned now that a Jewish museum is being built in Vienna. The Jerusalem archives claims that the materials were given to them in perpetuity.  The Supreme Court urged the two sides to come to an agreement that would result in the original documents remaining in Israel, with a digital copy going back to Vienna and some of the original documents being sent on loan to the Museum of the Jewish Community in Vienna once it is completed.

Canadian Court Certifies Class Action Against Anglican Boarding School For Abuse of Students

In Cavanaugh v. Grenville Christian College, (ON Super Ct, Feb. 24, 2014), a Superior Court in the Canadian province of Ontario certified for class action status a lawsuit by former students of an Anglican boarding school, Grenville Christian College, located in Brockville, Ontario. The suit alleges breach of fiduciary duty, negligence, assault, battery and intentional infliction of mental suffering. According  to the court:

The appellants allege that they were subjected to various forms of physical and psychological abuse at the hands of Grenville staff.... They allege that the abuse was systemic and pervasive. In particular, they plead that “the conduct of the defendants … was part of a systemic campaign by the defendants, Fathers Haig and Farnsworth and the school to promote and indoctrinate students in the teachings and practices of the Community of Jesus.” The Community of Jesus is a Christian organization based in Orleans, Massachusetts, which the appellants characterize as a religious cult whose teachings and practices were intolerant and fanatical.

Mondaq reports on the decision.

Investigative Report Criticizes IRS Classifying Televangelists as Churches

NPR yesterday published a lengthy investigative report on the lack of financial transparency of television evangelists because the Internal Revenue Service is willing to categorize many of them as churches rather than non-profit religious organizations.  Churches are not required to file Form 990 that provides annual disclosure of finances. The report focuses particularly on Daystar Television, one of the three largest religious television networks. Illustrating financial concerns that might be revealed if televangelists had to file Form 990, the report said in part:

Daystar's primary revenue comes from selling airtime to other religious programmers. Its secondary income is donations.... [B]etween 2005 and 2011, Daystar took in $208 million in tax-deductable contributions from viewers through on-air pitches. Daystar has built a public image as a generous giver to charitable causes. Indeed, the network has contributed millions of dollars to a trauma center and a home for Holocaust survivors in Israel, a hospital in Calcutta, and to ministries that support women in Moldova and children in Uganda....

NPR analyzed six years of Daystar balance sheets. They show the network gave away $9.7 million dollars in direct grants to outside recipients. Not $30 million [which its founder has claimed]. That works out to charitable giving of about 5 percent of donor revenue.

NY Jewish Group Can Proceed With Challenge To Validity of Mortgage Because Court Approval Was Required

Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., (SD NY, March 30, 2014) is a 61-page opinion growing out of a suit by an Orthodox Jewish religious group that encountered hurdles in its attempt to build an adult religious studies Kollel building along with family housing for Kollel students on a parcel of land in Ramapo, New York.  The events are part of the tension in recent years over the movement of increasing numbers of Orthodox and Hasidic Jewish families to Ramapo and areas around it in Rockland County. (See prior posting.)

Originally the Kollel project was financed by RBS Citizens, but it sold the note and mortgage to Avon which eventually foreclosed on the mortgage.  Among the 17 causes of action against three groups of defendants is a claim that the foreclosure was commenced because a principal of Avon, Abraham Grunwald, disapproved of the religious lifestyle and education of the Mosdos Kollel students and wanted to close down the Kollel and replace it with an institution consistent with Grunwald’s own religious values. The complaint also alleges that an agent of Avon and Grunwald  engaged in a campaign to injure Mosdos by calling its students to tell them that the school would be shut down, and urging donors not to donate because the school is not viable.

The court dismissed abuse of process and slander claims against the Avon defendants.  But it did allow Mosdos to move forward with its claim that the mortgage agreement that was foreclosed upon is invalid because under Sec. 12(1)  of New York's Religious Corporation Law the mortgage requires prior court approval. (See prior related posting.)

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]

Satmar Community Agrees To Eliminate Official Endorsement of Sex Segregated Playground

The New York Civil Liberties Union reported yesterday that the Village of Kiryas Joel, New York, has settled a Freedom of Information lawsuit brought against it seeking information on the alleged sex segregation of a Village public park.  The media last year reported that the Village, which is comprised predominately of members of the Satmar Hasidic Jewish sect, had constructed a 283-acre playground with one area for women and girls (red benches and playground equipment) and a separate blue area for boys and men. (See prior posting.)  In settling the suit (full text of March 26 Stipulation and Settlement Order), the Village confirmed to the ACLU that it does not have a policy of directing, endorsing or enforcing illegal sex segregation in the Village playground known as Kinder Park.  The settlement authorizes the ACLU to conduct two visits each summer for the next three years to check on its compliance. The ACLU says that the Village has removed Yiddish signs that were previously posted instructing visitors about the sex-segregated areas. The Village also agreed to pay $3000 in petitioners' attorneys' fees. Failed Messiah, reporting on the settlement, claims that the playground will remain voluntarily segregated.

U.S. Catholic Bishops Issue 2013 Report On Clergy Abuse Allegations and Costs

On March 28, the U.S. Conference of Catholic Bishops released its most recent report on the Church's ongoing efforts to deal with clergy sexual abuse of minors.  Its 2013 Annual Report on the Implementation of the “Charter for the Protection of Children and Young People" discloses that in 2013 there were 370 new credible allegations of sexual abuse of a minor made against 290 priests or deacons. Only nine of the allegations involved victims who were under 18 in 2013. The rest involved adults who claim abuse in the past. 80% of the victims were male while 20% were female.  Five of the 370 allegations involved only child pornography. 69% of the allegations involved conduct that occurred or began between 1960 and 1984. During 2013, dioceses and eparchies paid out $108.9 million as follows: $61 million in settlements; $6 million in therapy for victims; $10.4 million in support for offenders; $28.9 million in attorneys' fees; and $2.4 million in other costs. In the past ten years, costs related to claims have totaled $109 million. Insurance covered 21% of the amounts paid out in 2013. The report deals separately with abuse complaints directed to clerical and mixed religious institutes where 2013 saw 94 new credible allegations of abuse. Catholic World News covers the report. [Thanks to Pewsitter.com for the lead.]

SCOTUS Denies Cert. In 2 Non-Profit Contraceptive Mandate Cases Seeking Review Ahead of Circuit Court Decisions

The U.S. Supreme Court today denied certiorari (Order List) in two cases in which Catholic non-profit organizations are challenging the Affordable Care Act compromise that allows them to opt out of providing their employees contraceptive coverage only if they sign a form that results in the employees receiving coverage directly from the health insurance company or third party administrator.  The two cases in which review was denied today were both ones in which the non-profit organization took the unusual step of seeking Supreme Court review before the appeal of the district court's decision was heard and decided by the Court of Appeals. The first of today's denials was in Roman Catholic Archbishop of Washington v. Sebelius, (Docket No. 13-829, cert. denied 3/31/2014) in which the D.C. federal district court upheld the challenge to the compromise as to one of the plaintiffs that offered a self-insured plan, but not for the others who offered group insurance or church plans. (See prior posting). The second denial was in Priests for Life v. Department of Health and Human Services, (Docket No. 13-891, cert. denied 3/31/2014) in which the D.C. federal district found that no substantial burden was placed on a pro-life group's free exercise by requiring it to complete the self-certification form to opt into the accommodation. (See prior posting.) Reuters reports on the denial of review.

Hearing This Week On Injunction Against New Jersey Archdiocese Selling Headstone and Mausoleum Rights

Yesterday's Newark Star Ledger reports that a hearing is scheduled April 1 in a New Jersey Superior Court on an action by three cemetery monument companies against the Roman Catholic Archdiocese of Newark seeking to enjoin the Archdiocese from selling monuments and private mausoleums at Catholic cemeteries.  The complaint (full text) in Monument Builders of New Jersey, Inc. v. Roman Catholic Archdiocese of Newark, (NJ Super Ct), filed last  year argues that the Archdiocese has engaged in unfair competition with private monument companies:

The sale of the monuments and the private mausoleums is in direct competition with Plaintiff entities and because of its tax-exempt status and the close contact with the family of the deceased before, at the time of, and after the burial give the Archdiocese preferred economic position and ease of access to prospective customers in promoting sales.

The complaint also alleges that the sale of monuments by the Archdiocese is ultra vires and against public policy.

The Archdiocese's answer (full text) filed Sept. 4, 2013, says that the Archdiocese is not selling monuments and mausoleums. Rather it is selling inscription rights to monuments and burial rights in mausoleums that the Archdiocese owns.  This arrangement makes it responsible for repairs when there is damage to headstones of mausoleums.  The Archdiocese admits that it is subject to New Jersey's 7% use tax on the monuments and mausoleums it purchases, even though apparently it has not yet paid the tax. (Deposition.)

NY Appellate Court Upholds $1.6 M Religion- Sexual Orientation Discrimination Verdict

In Salemi v. Gloria's Tribeca Inc., (NY App. Div., March 20, 2014), a New York appellate court upheld a jury verdict of $1.6 million in a suit alleging employment discrimination on the basis of religion and sexual orientation in violation of the New York City Human Rights Law.  Plaintiff worked as chef and manager of a restaurant.  The court concluded that the jury had ample evidence to find that plaintiff's employer:

discriminated against her based on her religion and sexual orientation by, amongst other things, holding weekly prayer meetings at the restaurant ... which the staff viewed as mandatory, fearing that they would lose their jobs if they did not attend, repeatedly stating that homosexuality is "a sin," and that "gay people" were "going to go to hell" and generally subjecting her to an incessant barrage of offensive anti-homosexual invective.... Additional evidence demonstrated that ... plaintiff was retaliated against for objecting to [her employer's] offensive comments, choosing not to attend workplace prayer meetings, and refusing to fire another employee because of his sexual orientation.

In response to defendant's argument that he was expressing his religious beliefs, the court said that the jury was properly instructed that he could do so provided he did not discriminate against his employees based on religion or sexual orientation. Courthouse News Service reports on the decision.